Law Times

Law Times • June 15, 2015 Page 7 www.lawtimesnews.com COMMENT Let paralegals act in arbitration matters By Michael hassell For Law Times an a paralegal represent a party in an arbi- tration pursuant to the Arbitration Act? While it appears the answer to this question is yes and paralegals can represent parties where more than $25,000 is at stake, there is no concrete answer. There are strong policy arguments in favour of para- legal representation in arbitrations and, given the uncer- tainty, the Law Society of Upper Canada should update its bylaws to confirm that paralegals can appear at arbi- trations pursuant to the Arbitration Act. More and more often, clients are asking for alterna- tives to litigation and they are turning to options such as arbitration. Recent growth in the demand for arbitration has in turn caused it to emerge as an attractive practice area for paralegals. As I am not aware of any case law in Ontario that di- rectly answers the question about paralegal representa- tion in such matters, it is a matter of statutory interpre- tation. Subsection 6(2) of Bylaw 4 of the Law Society Act outlines the scope of activities a paralegal may engage in. This includes representing a party before "a tribunal es- tablished under an act of the legislature of Ontario." According to the paralegal rules of conduct, the defi- nition of "tribunal" includes "arbitrators." Subsection 1(1) of the Law Society Act defines an "ad- judicative body" to include "a tribunal established under an act of Parliament or under an act of the legislature of Ontario" as well as "an arbitrator." Although there ap- pears to be a distinction in this subsection, one or more arbitrators form an arbitral tribunal. The question be- comes whether or not an act of the Ontario legislature established that arbitral tribunal. The Arbitration Act is an act of the legislature that deals with arbitral tribunals and includes issues such as their composition, jurisdiction, and conduct as well as awards, enforcement, and appeals of their decisions. An arbitral tribunal exercises statutory powers in decision-making. For example, pursuant to subsec- tion 17(1) of the Arbitration Act, an "arbitral tribunal may rule on its own jurisdiction." As a further exam- ple, s. 31 of the Arbitration Act states that an "arbitral tribunal shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions, and other equitable remedies." Since the Arbitration Act is an act of the legislature that addresses fundamental issues and an arbitral tri- bunal exercises statutory powers in decision-making, it appears such a body meets the definition in Bylaw 4 of "a tribunal established under an act of the legisla- ture of Ontario." In light of all of that, it appears paralegals can rep- resent clients in arbitrations. One argument against paralegals being able to act in arbitrations relates to the notion of consensual ver- sus compulsory arbitration. Arbitrations pursuant to the Arbitration Act are consensual based on an arbi- tration agreement. Compare this with arbitrations at the Financial Services Commission of Ontario, which are not consensual and before which Bylaw 4 is clear a paralegal can appear. This argument may rely, how- ever, on a historic viewpoint predating the Arbitration Act. Prior to the Arbitration Act, it appears parties in Ontario were at will to form any arbitration agreement they wanted to subject to the common law. Another argument suggests the Arbitration Act regulates arbitral tribunals as opposed to establish- ing them. As outlined above, the Arbitration Act ad- dresses fundamental issues and an arbitral tribunal exercises statutory powers in decision-making. Furthermore, it is interesting to look at the Statutory Powers Procedure Act, which at subsection 3(1) explains that it applies, among other things, "to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an act of the legislature." The Statutory Powers Procedure Act would cap- ture arbitrations pursuant to the Arbitration Act if it weren't for subsection 3(2) that says it does not apply to arbitrations pursuant to the Arbitration Act. When it comes to the question of whether parale- gals can represent a client in an arbitration where the claim is for more than $25,000, it is worth looking at the rules in areas where we know they can act already. Paralegals can represent clients before tribunals without a monetary limit. For example, the Hu- man Rights Tribunal of Ontario has no such limit. When it comes to the Small Claims Court, the limit is specific to the Small Claims Court pursuant to the Courts of Justice Act. At the Landlord and Tenant Board, the $25,000 limit relates to the Small Claims Court limit pursuant to various sections of the Residential Tenancies Act. There is no monetary limit in the Arbitration Act. As a $25,000 limit is specific to the Small Claims Court and the Landlord and Tenant Board due to legisla- tion and regulations and there is no monetary limit in the Arbitration Act, it appears paralegals can represent cli- ents in arbitrations where more than $25,000 is at stake. There are many strong policy arguments as to why paralegals should be able to represent clients before ar- bitral tribunals. Paralegals and arbitration are extremely important in terms of access to justice. In terms of protecting the public interest, paralegals already represent clients in court and before a large num- ber of different tribunals. The law society regulates para- legals who owe duties to their clients and tribunals. One of a paralegal's duties to clients in the paralegal rules of conduct is competence. Paralegals who take on arbitration cases must ensure they are competent. Famil- iarity with the applicable arbitration rules and the Arbi- tration Act is important. With exceptions, arbitration is usually a voluntary forum for dispute resolution. Arbitrating parties should therefore also be able to decide whether to represent themselves or have a paralegal or lawyer represent them subject to any clauses in the arbitration rules. As the law is now, it appears paralegals can represent clients in arbitrations and there is no monetary limit re- stricting a paralegal's representation. But with conf licting views on the issue, the law soci- ety should consider clarifying paralegal rights of repre- sentation in arbitration proceedings. More specifically, it should clearly delineate in s. 6 of Bylaw 4 that paralegals can represent clients before arbitral tribunals to which the Arbitration Act applies. Such a change represents a wonderful and exciting opportunity to facilitate alterna- tive dispute resolution across Ontario. LT Michael Hassell is a Toronto trial lawyer and arbitrator. u SPEAKER'S CORNER Maybe a judge can help instil Senate accountability arliament has never seen anything like the massive, damning report about how a culture of inappropri- ate and illegal spending, personal corruption, and a thorough lack of account- ability to the public had taken over the Sen- ate from top to bottom. It all came out last week in a 130-page, report by federal auditor general Michael Ferguson into the personal and sometimes allegedly illegal spending habits of 116 past and current senators. Ferguson picked what he figured were the nine worst of the 21 serious cases he ex- amined and sent all of the evidence he had to the RCMP for investigation. His probe took two years, used up several dozen employees, and sometimes went back five years to establish whether something was a trend or not. The investigation cost $23.5 million and dug up close to a million dollars of question- able spending by senators. Already, some senators caught in the mess have been saying that's a lot of public money spent just to locate a million bucks with no guarantee the public will ever see those funds again. Ferguson defended every cent he spent on his investigation. Opposition Leader Thomas Mulcair said later the Ferguson report demonstrated the need to abolish the Senate, something he plans to do if he comes to power after the next election. Liberal Leader Justin Trudeau says it's time to get decent people appointed to the Senate rather than closing down the place. Some senators, who might have seen the report's conclu- sions coming ahead of time, moved quickly and paid back the money Ferguson said they should never have spent. They're now arguing they shouldn't face punishment for taking money they've already given back. Some MPs and parliamentary observers say that's like bank robbers giving back the loot and saying they shouldn't have to go to jail since they returned the money. The big surprise on Tuesday for journal- ists and MPs was the strange reaction of the top Senate leaders, including Leo Housakos, the Senate Speaker recently appointed by Prime Minister Stephen Harper to clean up the place. The timing was interesting. His appointment comes with suspended senator Mike Duffy in court and others fac- ing possible charges. Strangely, Claude Carignan, the gov- ernment leader in the Senate, and Liberal James Cowan both went in the same direc- tion as Housakos, agreeing there had been some problems but refusing to condemn the entire Senate outright. All three played down the Ferguson r eport's findings as nothing the senators couldn't solve them- selves with the help of retired Supreme Court justice Ian Bin- nie, who they've brought in as an arbitrator. Ferguson has a different view. He called for an independent Senate spending bureau to watch over spending by individual senators. Already, some senators are making plans to allow them to challenge Binnie's decisions in court. But then there are the Mounties. They've got nine cases and all of the evi- dence Ferguson gave them. Who knows what the Mounties may decide to do with the evidence? Harper was wisely staying away from any public comments on Tuesday, prob- ably wondering why he ever appointed many of the senators. Ferguson doesn't want to get into the business of telling the Senate how it should operate right down to every little parliamen- tary detail but he knows three big areas of concern they should look at: senators' travel, residency, and individual contracts. Those issues kept coming up all of the time during his investigation. Ferguson even told senators where they could start fixing the problems. Writing clear and concise rules for contracting out "should be the easiest to fix," a ccording to Ferguson. Next would be principal residency defi- nitions for senators who get allowances for where they live. And finally, he called for clearer rules for what kind of travel should count as Senate business. Senators have a habit of defining Sen- ate business to their own advantage and claiming a travel allowance. Ferguson said he couldn't believe the outrageousness of what he found in some cases and expressed shock at the "lack of transparency" of some senators. Some felt they had a right to anything they wanted. He stopped short of rattling off the old saying in the House of Commons: "What a senator wants, a senator gets." Ferguson didn't repeat the line, but a great many members of the Commons from all parties joked about it last week. Ferguson put it this way: "What struck me early on was the number of senators who felt they didn't have to be account- able. That seemed to be part of the culture in the Senate." The issue will be changing "the entire culture of the Senate" rather than just get- ting rid of a few bad apples, said Ferguson. Maybe a judge can help with that. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail ad- dress is richardcleroux@rogers.com. C The Hill Richard Cleroux P

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